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The Appearance of Fairness Doctrine

EPORT NUMBER 32 Revised pril 2011

n Washington State

Municipal Research and Services Center


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The Appearance of Fairness Doctrinein Washington State

REPORT NUMBER 32 Revised $12 City/County/State/Local Government $18 All Others April 2011


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Copyright 2011 by the Municipal Research and ServicesCenter of Washington. All rights reserved. Except aspermitted under the Copyright Act of 1976, no part of this publication may be reproduced or distributed in anyform or by any means or stored in a database or retrievalsystem without the prior written permission of the publisher;however, governmental entities in the state of Washingtonare granted permission to reproduce and distribute thispublication for official use.

Municipal Research and Services Center2601 4th Avenue, Suite 800Seattle, WA [email protected]


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Preface

This publication is designed to provide an overview of the appearance of fairness doctrine as it isapplied in Washington State.

All municipal officials in Washington face concerns about making sure that meetings and hearingsare conducted in a fair manner. This publication is intended to serve as a resource and convenienthandbook for elected and appointed municipal officials.

It reviews how the appearance of fairness doctrine developed in Washington State first bycourt-made law, and later by state legislation and provides a number of suggestions for assuringcompliance with the law. It also contains a section on commonly asked questions, and includessample checklists for conducting hearings. The appendix contains the full text of the appearance of fairness statutes, samples of meeting procedures for quasi-judicial hearings, and an outline of casesthat illustrate how the doctrine has been applied in Washington.

Special acknowledgement is given to Pamela James, Legal Consultant, for her work in preparing thispublication. Appreciation is also given to Holly Stewart for her excellent work in designing andpreparing the document for publication. Special thanks to Paul Sullivan, Legal Consultant, andConnie Elliot, Research Associate, who reviewed the draft and provided helpful advice.

Richard YukubouskyExecutive Director


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Contents

Introduction to the Appearance of Fairness Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

History of the Doctrine in Washington State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Court-Developed Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Legislation Not Subject to Appearance of Fairness Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Importance of Impartial Decision-Makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Personal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Prejudgment of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Partiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Statutory Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Types of Proceedings to Which it Applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Basic Requirements of the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Applies Only to Quasi-Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Does Not Apply to Policy-Making or Legislative Actions . . . . . . . . . . . . . . . . . . . . . . 8 Special Rules Apply During Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ex Parte Contacts Are Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 No Disqualification for Prior Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Challenges Must Be Timely . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rule of Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Fair Hearings Have Precedence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Guidelines for Avoiding Fairness Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Test for Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Officials Who Are Subject to the Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Officials and Employees Who Are Not Subject to the Doctrine . . . . . . . . . . . . . . . . . . . . . . 13Actions That Are Exempt from the Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Remedy for Violation of the Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Commonly Asked Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Appendix A Chapter 42.36 RCW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Appendix B Summary of Washington Appearance of Fairness Doctrine Cases . . . . . . 29

Appendix C Sample Council Meeting Procedures for Quasi-Judicial Meetings . . . . . . 37


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Introduction to the Appearance

of Fairness Doctrine

The appearance of fairness doctrine is a rule of law requiring government decision-makers toconduct non-court hearings and proceedings in a way that is fair and unbiased in both appearanceand fact. It was developed as a method of assuring that due process protections, which normallyapply in courtroom settings, extend to certain types of administrative decision-making hearings, suchas rezones of specific property. The doctrine attempts to bolster public confidence in fair andunbiased decision-making by making certain, in both appearance and fact, that parties to an argumentreceive equal treatment.

Judicially established in Washington State in 1969, the doctrine requires public hearings that areadjudicatory or quasi-judicial in nature meet two requirements: hearings must be procedurally fair, 1

and must appear to be conducted by impartial decision-makers .2

In 1982, the Washington State Legislature codified the portion of the appearance of fairness doctrinethat applies to land use proceedings. The next sections will address how Washington courts havedefined the doctrine, the statutory provisions of the doctrine, types of proceedings to which thedoctrine applies, recognized violations of the doctrine, and suggestions for compliance.

The appearance of fairness doctrine is designed to guarantee thatstrict procedural requirements are followed so that quasi-judicialhearings are not only fair, but also appear to be fair. The goal of thedoctrine is to instill and maintain confidence in the fairness of government proceedings.

1Smith v. Skagit Co. , 75 Wn.2d 715, 740, 453 P.2d 832 (1969).

2 Buell v. Bremerton , 80 Wn.2d 518, 523, 495 P.2d 1358 (1972).

The Appearance of Fairness Doctrine in Washington State 1


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History of the Doctrine

in Washington State

Court-Developed Doctrine

The appearance of fairness doctrine developed in Washington in the context of zoning hearings. Inseveral 1969 cases, the Washington State Supreme Court invalidated local land use regulatoryactions because either the hearings appeared unfair, or public officials with apparently impropermotives or biases failed to disqualify themselves from the decision-making process. The court

decided that the strict fairness requirements of impartiality and procedural fairness mandated in judicial hearings should be applied when administrative bodies hold quasi-judicial hearings thataffect individual or property rights.

This application reflected the court's belief in the importance of maintaining public confidence inland use regulatory processes. As stated in Chrobuck v. Snohomish County :3

Circumstances or occurrences arising within such processes that, by their appearance,undermine and dissipate confidence in the exercise of zoning power, however innocent theymight otherwise be, must be scrutinized with care and with the view that the evils sought tobe remedied lie not only in the elimination of actual bias, prejudice, improper influence or

favoritism, but also in the curbing of conditions that, by their very existence, createsuspicion, generate misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or prejudgment over the proceedings to which they relate.

Washington courts have consistently contrasted the differences between the political process, whichis designed to be responsive to public opinion, and the judicial process, which is designed to ensurethat disputes are resolved according to sound legal principles. The Chrobuck court stated thedoctrine in this manner:

... public officers impressed with the duty of conducting a fair and impartial fact-findinghearing upon issues significantly affecting individual property rights as well as community

interests, must so far as practicable, consideration being given to the fact that they are not judicial officers, be open minded, objective, impartial and free of entangling influences orthe taint thereof. . . . They must be capable of hearing the weak voices as well as the strong.To permit otherwise would impair the requisite public confidence in the integrity of the

378 Wn.2d 858, 480 P.2d 489 (1971).

2 The Appearance of Fairness Doctrine in Washington State


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planning commission and its hearing procedures. 4

Legislation Not Subject to Appearance of Fairness Doctrine

Our courts have not imposed the appearance of fairness doctrine on legislative or politicalproceedings. This is probably due to the recognition that legislators most often act in policy-making

roles and are often influenced by their personal predilections and biases as well as those of the peoplethey represent. Because legislators are expected to respond to variations in public opinion, frequentinformal contact between elected officials and the public is recognized as necessary for the on-goingbusiness of democratic government. The elaborate procedural safeguards imposed by courts are notnecessary for legislative proceedings because, ultimately, it is the voters who protect the process of legislation.

The Importance of Impartial Decision-Makers

From the earliest Washington cases, our courts have demanded that decision-makers who determinerights between specific parties must act and make decisions in a manner that is free of the suspicionof unfairness. The courts have been concerned with entangling influences and personal interestwhich demonstrate bias, and have invalidated local land use decisions because either the hearingsappeared unfair or public officials with apparently improper motives failed to disqualify themselvesfrom the decision-making process.

In Buell v. Bremerton 5 the state supreme court identified three major categories of bias that itrecognized as grounds for the disqualification of decision-makers who perform quasi-judicialfunctions: personal interest, prejudgment of issues, and partiality.

Personal Interest

Personal interest exists when someone stands to gain or lose because of a governmental decision.Our courts have found personal interest to exist in the following situations:

As developed in case law, the appearance of fairness doctrine isintended to protect against actual bias, prejudice, improper influence,or favoritism. It is also aimed at curbing conditions that createsuspicion, misinterpretation, prejudgment, partiality, and conflicts of interest. If an action is subject to the appearance of fairness doctrine,then all legally required public hearings, as well as the participatingpublic officials, will be scrutinized for apparent fairness.

4Chrobuck v. Snohomish Co. , 78 Wn.2d 858, 480 P.2d 489 (1971).

580 Wn.2d 518, 524, 495 P.2d 1358 (1972).



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wasting his time talking. (By statute, candidates can express opinions on proposed or pendingquasi-judicial matters; but once elected to office they are expected to be able to draw the linebetween general policy and situations in which general policy is applied to specific factualsituations.) 13

Partiality

Partiality is anathema to fair hearings and deliberations. The existence of hostility or favoritism canturn an otherwise carefully conducted hearing into an unfair proceeding. Partiality can also cost acity incalculable hours of wasted staff time and energy.

For example, in Hayden v. Pt. Townsend , 28 Wn. App. 192 (1981), the planning commissionchairperson, who advocated a particular rezone for his business, relinquished his position as chairof the hearing, and did not vote or otherwise participate in his official capacity. Nevertheless, anappearance of fairness violation occurred because the planning commission chairperson acted as anadvocate of the rezone by joining the hearing audience, acting as an agent of the rezone applicant,questioning witnesses, and advising the acting chairman on procedural matters.

In Buell v. Bremerton , an appearance of fairness violation occurred because a planning commission

member continued to participate even though the rezone would have been approved without his vote,and the planning commission approval was merely a recommendation to council. In reviewing thecontinuing participation of the disqualified member, the court found that the bias of one memberinfects the actions of other members. The importance of the appearance of fairness has resultedin the recognition that it is necessary only to show an interest that might have influenced a memberof the commission and not that it actually so affected him. 14

Because each fact-situation requires a subjective evaluation, a great deal of confusion is caused bythe different applications of the doctrine. No doubt the unpredictable nature of court application of the doctrine helped encourage the legislature to standardize the doctrine's application in land usematters.

While most of the early appearance of fairness cases involved zoning matters, our courts have alsoapplied the doctrine to civil service and other types of administrative proceedings involvingquasi-judicial hearings. See attached summary of Washington appearance of fairness cases,Appendix B.

Test for bias:

Has the decision been made solely on the basis of matters of record?

Would a fair-minded person, observing the proceedings, be able to conclude that everyonehad been heard who should have been heard?

Did decision-makers give reasonable faith and credit to all matters presented, according tothe weight and force they were reasonably entitled to receive? 15

13Chrobuck , supra .

14 Buell at 523.

15Smith v. Skagit Co. , supra .



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The Statutory Doctrine

Types of Proceedings to Which it Applies

In 1982, the state legislature enacted what is now chapter 42.36 RCW, codifying the appearance of fairness doctrine. The statutory doctrine applies only to local quasi-judicial land use actions, asdefined in RCW 42.36.010:

...those actions of the legislative body, planning commission, hearing examiner, zoningadjuster, board of adjustment, or boards that determine the legal rights, duties or privileges

of specific parties in a hearing or other contested case proceeding.

The primary characteristics of a quasi-judicial matter are that:

the decision has a greater impact on a limited number of persons or property owner, and haslimited impact on the community at large;

the proceedings are aimed at reaching a fact-based decision by choosing between two distinctalternatives; and

the decision involves policy application rather than policy setting.

The following types of land use matters meet this definition: subdivisions, preliminary platapprovals, conditional use permits, SEPA appeals, rezones of specific parcels of property, variances,and other types of discretionary zoning permits if a hearing must be held.

The statutory doctrine does not apply to the following actions:

adoption, amendment, or revision of comprehensive plans adoption of area-wide zoning ordinances adoption of area-wide zoning amendments building permit denial.

As a practical matter, if both legislative and adjudicative functions arecombined in one proceeding, and any showing of bias is present, theappearance of fairness rules should be followed.



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Basic Requirements of the Statute

Applies Only to Quasi-Judicial Proceedings

RCW 42.36.010 Application of the appearance of fairness doctrine to local land usedecisions shall be limited to the quasi-judicial actions of local decision-making bodies....

The appearance of fairness doctrine applies only to quasi-judicial actions of local decision-makingbodies when a hearing is required by statute or local ordinance. 16

Public officials act more like judges than administrators or legislators when they participate inquasi-judicial hearings. This means that they must listen to and evaluate testimony and evidencepresented at a hearing; they must determine the existence of facts; they must draw conclusions fromfacts presented; and then decide whether the law allows the requested action. A quasi-judicialproceeding involves policy application , rather than policy making .

Quasi-judicial actions are defined to include:

...actions of the legislative body, planning commission, hearing examiner, zoning adjuster,board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding.

The principle characteristics of quasi-judicial proceedings:

generally have a greater impact on specific individuals then on the entire community.

aimed at arriving at a fact-based decision between two distinct alternatives, i.e., pro orcon.

decision involves policy application rather than policy setting.

The following matters have been determined by the courts to be quasi-judicial if a public hearingmust be held: conditional uses, variances, subdivisions, rezoning a specific site, PUD approval,preliminary plat approval, discretionary zoning permits, appeal of a rezone application, other typesof zoning changes that involve fact-finding and the application of general policy to a discretesituation.

Before proceeding with a hearing: Determine whether the intended

action will produce a general rule or policy that applies to an openclass of individuals, interests, or situations (and is thus legislative), orwhether it will apply a general rule of policy to specific individuals,interests, or situations (and is therefore quasi-judicial).

16RCW 42.36.010; affirmed in Raynes v. Leavenworth , 118 Wn.2d 237, 821 P.2d 1204 (1992).



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Does Not Apply to Policy-Making or Legislative Actions

RCW 42.36.010 Quasi-judicial actions do not include the legislative actions adopting,amending, or revising comprehensive, community, or neighborhood plans or other land useplanning documents or the adoption of area-wide zoning ordinances or the adoption of azoning amendment that is of area-wide significance.

Policy-making is clearly the work of legislative bodies and doesn't resemble the ordinary businessof the courts. The doctrine does not apply to local legislative, policy-making actions of the type thatadopt, amend, or revise comprehensive, community, or neighborhood plans or other land useplanning documents. It also does not apply to the passage of area-wide zoning ordinances, or to theadoption of zoning amendments that are of area-wide significance.

Even though a zoning amendment might affect specific individuals, if it applies to an entire zoningdistrict, it will be considered legislative, not quasi-judicial. As the court noted in Raynes v.

Leavenworth :

The fact that the solution chosen has a high impact on a few people does not alter the

fundamental nature of the decision.17

The courts have also determined the following matters to be legislative (e.g., political or policydecisions) and therefore not subject to the appearance of fairness doctrine: comprehensive plans,initial zoning decisions, amendments to the text of zoning ordinances, street vacations, revision of a community plan viewed by the court to be in the nature of a blueprint and policy statement for thefuture, 18 determining where to place a highway interchange. 19

Special Rules Apply During Elections

RCW 42.36.050 A candidate for public office who complies with all provisions of

applicable public disclosure and ethics laws shall not be limited from accepting campaigncontributions to finance the campaign, including outstanding debts; nor shall it be a violationof the appearance of fairness doctrine to accept such campaign contributions.

During campaigns, candidates for public office are allowed to express their opinions about pendingor proposed quasi-judicial actions, even though they may be involved in later hearings on these sameactions. Candidates are also allowed to accept campaign contributions from constituents who havequasi-judicial matters pending before the decision-making body as long as candidates comply withapplicable public disclosure and ethics laws. 20

17 Raynes , supra . at 249.

18Westside Hilltop Survival Committee v. King County , 96 Wn.2d 171, 179, 634 P.2d 862 (l981).

19 Harris v. Hornbaker , 98 Wn.2d 650, 658 P.2d 1219 (1983).

20 Improvement Alliance v. Snohomish Cy. , 61 Wn.App. 64, 808 P.2d 781 (1991).



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Ex Parte Contacts Are Prohibited

RCW 42.36.060 During the pendency of any quasi-judicial proceeding, no member of adecision-making body may engage in ex parte communications with opponents or proponentswith respect to the proposal which is the subject of the proceeding unless that person:

(1) places on the record the substance of any written or oral ex parte communicationsconcerning the decision or action; and

(2) provides that a public announcement of the content of the communication and of the parties' rights to rebut the substance of the communication shall be made at eachhearing where action is considered or taken on the subject to which the

communication is related. This prohibition does not preclude a member of adecision-making body from seeking in a public hearing specific information or datafrom such parties relative to the decision, if both the request and the results are a partof the record. Nor does such prohibition preclude correspondence between a citizenand his or her elected official, if any such correspondence is made a part of the recordwhen it pertains to the subject matter of a quasi-judicial proceeding.

A basic principle of fair hearings is that decisions are made entirely on the basis of evidencepresented at the proceedings. All parties to a conflict should be allowed to respond and state theircase. Consequently, while a quasi-judicial proceeding is pending, no member of a decision-makingbody is allowed to engage in ex parte (one-sided or outside the record of the hearing)

communications with either proponents or opponents of the proceeding.

A decision-maker is allowed to cure a violation caused by an ex parte communication by:

placing the substance of any oral or written communications or contact on the record; and

at each hearing where action is taken or considered on the subject, (1) making a publicannouncement of the content of the communication, and (2) allowing involved parties torebut the substance of the communication.

This rule does not prohibit written correspondence between a citizen and an elected official on the

subject matter of a pending quasi-judicial matter, if the correspondence is made a part of the record of the proceedings .

No Disqualification for Prior Participation

RCW 42.36.070 Participation by a member of a decision-making body in earlierproceedings that result in an advisory recommendation to a decision-making body shall notdisqualify that person from participating in any subsequent quasi-judicial proceeding.

Ex parte literally means one sided. Ex parte contact involves aone-sided discussion without providing the other side with anopportunity to respond and state their case.



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A decision-maker (such as a councilmember who was formerly a planning commission member)who participated in earlier proceedings on the same matter that resulted in an advisoryrecommendation to another decision-making body (e.g., the city council) is not disqualified fromparticipating in the subsequent quasi-judicial proceedings.

Challenges Must Be Timely

RCW 42.36.080 Anyone seeking to rely on the appearance of fairness doctrine todisqualify a member of a decision-making body from participating in a decision must raisethe challenge as soon as the basis for disqualification is made known to the individual.Where the basis is known or should reasonably have been known prior to the issuance of adecision and is not raised, it may not be relied on to invalidate the decision.

If information is disclosed indicating violation of the doctrine, opponents or proponents can decidewhether to request disqualification or waive their right to challenge the alleged violation. Challengesbased on a suspected violation of the appearance of fairness doctrine have to be raised as soon as thebasis for disqualification is made known, or reasonably should have been known, prior to theissuance of the decision, otherwise they cannot be used to invalidate the decision.

Rule of Necessity

RCW 42.36.090 In the event of a challenge to a member or members of a decision-makingbody which would cause a lack of a quorum or would result in a failure to obtain a majorityvote as required by law, any such challenged member(s) shall be permitted to fullyparticipate in the proceeding and vote as though the challenge had not occurred, if themember or members publicly disclose the basis for disqualification prior to rendering adecision. Such participation shall not subject the decision to a challenge by reason of violation of the appearance of fairness doctrine.

If members of a decision-making body are challenged as being in violation of the doctrine so that

there are not enough members to legally make a decision, the rule of necessity allows challengedmembers to participate and vote. Before voting, though, the challenged officials must publicly statewhy they would, or might have been, disqualified.

Fair Hearings Have Precedence

RCW 42.36.110 Nothing in this chapter prohibits challenges to local land use decisionswhere actual violations of an individual's right to a fair hearing can be demonstrated.

Even though some conduct might not violate the statutory provisions of the appearance of fairnessdoctrine, a challenge could still be made if an unfair hearing actually results. For instance, although

RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinionstatements made during a campaign reflect an intractable attitude or bias that continues into thepost-election hearing process, a court might determine that the right to a fair hearing has beenimpaired, even if no statutes were violated.

The safest approach: avoid any appearance of partiality or bias.



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Because it is often difficult to sort out the many functions of local decision-making bodies, a clearline cannot always be drawn between judicial, legislative, and administrative functions. 21 If theproceedings seem similar to judicial proceedings then they probably warrant the special protectionscalled for by the appearance of fairness doctrine.

21See Buell v. Bremerton , supra . in which the court determined that participation was likely to influence othermembers and affect their actions.



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Guidelines for Avoiding

Fairness Violations

Officials who participate in quasi-judicial hearings need to:

become familiar with fair-hearing procedures;

be aware of personal and employment situations that might form the basis for a challenge;

strive to preserve an atmosphere of fairness and impartiality even if a given decision mayseem to be a foregone conclusion;

evaluate whether a financial interest or bias would limit ability to function as an impartialdecision-maker;

make sure decisions are made solely on the basis of matters of record;

make sure that ex parte contacts are avoided; and

make sure the information about the contact is placed on the record, if ex parte contactsoccur.

The Test for Fairness

Would a fair minded person in attendance at this hearing say (1) that everyone was heard who shouldhave been heard, and (2) that the decision-maker was impartial and free from outside influences?

Officials Who Are Subject to the Doctrine

The doctrine applies to all local decision-making bodies including:

One method of ensuring fair hearings is to adopt policies and rules forquasi-judicial matters. Some municipalities have adopted rulesrequiring that a decision maker respond to questions prior tocommencement of a quasi-judicial hearing. (Sample policies arecontained in Appendix C.)



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members of governing board or council;

hearing examiners;

planning commissions;

boards of adjustment;

civil service boards; and

any other body that determines the legal rights, duties or privileges of specific parties in ahearing or other contested case proceeding.

Officials and Employees Who Are Not Subject to the Doctrine

Department heads, planning department staff, and other municipal officials who don't conducthearings or engage in quasi-judicial decision-making functions are not subject to the doctrine.

(Although exempt from the doctrine's ex parte contact prohibition, they might still be subject to itsother requirements to make sure that all hearings are fair. RCW 42.36.110.)

Actions That Are Exempt from the Doctrine

Purely legislative matters, such as:

the adoption, amendment, or revision of a comprehensive, community, or neighborhood plan; adoption of area-wide zoning ordinances; and adoption of zoning amendments of area-wide significance.

Remedy for Violation of the Doctrine

A decision-maker who has had ex parte contacts is allowed, by statute, to cure the violation bypublicly stating the nature and substance of the contact on the record of the hearing and by advisingthe parties of any ex parte contact and giving each party a chance to respond at each subsequenthearing at which the matter is considered.

The statutory doctrine requires a suspected violation to be raised at the time of the hearing, otherwiseany objection will be considered waived. However, if there is no opportunity for the parties torespond to the disclosure of the contact, then the violation can't be cured, and the decision-makershould disqualify him or herself from the rest of the proceedings.

A disqualified decision-maker may not vote and, perhaps more importantly, may not participate inthe hearing and deliberation process, even if not voting .



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If a violation is proved, the challenged decision will be invalidated. Anew hearing must be conducted without the participation of thedisqualified decision-maker. Because the result of conducting a newhearing is often eventual reinstatement of the original decision, thepractical result of an invalidation is often tremendous delay andduplicative work for all the parties.



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Commonly Asked Questions

How does a local government decide whether a matter is quasi-judicial ?

Quasi-judicial actions are defined by state statute to be: ...those actions of the legislative body,planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards whichdetermine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding . RCW 42.36.010.

Which land use matters are legislative actions ?

Legislative actions include adoption, amendment, or revision of comprehensive, community, orneighborhood plans or other land use planning documents, or adoption of zoning ordinances oramendments that are of area-wide significance. See RCW 42.36.010.

What is an ex parte communication?

An ex parte communication is a one-sided discussion between a decision-maker and the proponentor opponent of a particular proposal that takes place outside of the formal hearing process on a

quasi-judicial matter. No member of a decision-making body is allowed to engage in ex partecommunication when quasi-judicial matters are pending.

How is it determined whether a matter is pending ?

Pending means after the time the initial application is filed or after the time an appeal is filed withthe local government. Thus, if a matter would come before the decision-maker only by appeal froma decision by the hearing examiner or planning commission, it is not considered pending with respectto councilmembers or until an appeal is filed. It would, however, be pending with respect to thehearing examiner or planning commissioners.

Is a council hearing on the adoption of an area-wide zoning ordinance subjectto the appearance of fairness doctrine?

No. Even though it requires a public hearing and affects individual landowners, this type of proceeding is legislative rather than adjudicatory or quasi-judicial .



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Is a rezone hearing subject to the doctrine?

Yes. The decision to change the zoning of particular parcels of property is adjudicatory and theappearance of fairness doctrine applies. (See Leonard v. City of Bothell , 87 Wn. 2d 847, 557 P.2d1306 (1976).

Is an annexation subject to the appearance of fairness doctrine?

No. An annexation is a legislative action and not a quasi-judicial action.

Does the appearance of fairness doctrine apply to preliminary plat approval ?

Yes, preliminary plat approval is quasi-judicial in nature and must be preceded by a public hearing.Therefore, it is subject to the doctrine of appearance of fairness. See Swift v. Island County , 87Wn.2d 348, 552 P.2d 175 (1976).

Does the appearance of fairness doctrine apply to a final plat approval ?

A public hearing is not required for final plat approval. The doctrine only applies to quasi-judicialland use matters for which a hearing is required by law.

Does the doctrine apply to street vacations ?

No. Even though a hearing is held, this is a legislative policy decision, not an adjudicatory matter.

Which local officials are subject to the doctrine ?

According to RCW 42.36.010, council members, planning commission members, board of adjustment members, hearing examiners, zoning adjusters, or members of boards participating inquasi-judicial hearings that determine the legal rights, duties, or privileges of specific parties in ahearing or other contested case proceeding are all subject to the doctrine.

Are any local government officials or employees exempt from the appearance

of fairness rule?

Even though required to make decisions on the merits of a particular case, department heads andstaff persons are not subject to the appearance of fairness rules.



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If a decision-maker announces before the hearing has even been held thather/his mind is already made up on a matter, what should be done?

The member should disqualify her/himself. (See Chrobuck v. Snohomish County , 78 Wn.2d 858,480 P.2d 489 (1971).

May a decision-maker meet with a constituent on matters of interest to theconstituent?

Yes, as long as there is no discussion of quasi-judicial matters pending before the council. SeeRCW 42.36.020; West Main Associates v. City of Bellevue , 49 Wn.App 513, 742 P.2d 1266 (1987).

May the city council and planning commission meet jointly to consider apresentation by a developer?

If no specific application has been filed by the developer, the council probably may meet jointly withthe planning commission to consider a proposal by a developer. The appearance of fairness doctrinehas been held by the courts to apply only to situations arising during the pendency of an action. If no application has been filed, no action is pending before the city. But if a formal application fora rezone has been filed, a joint meeting would probably violate the doctrine.

May councilmembers meet with a developer prior to an application for aproject?

Yes, if no application has been filed. A member of a decision-making body is not allowed to engage

in ex parte communications with opponents or proponents of a proposal during the pendency of aquasi-judicial proceeding unless certain statutory conditions are met. In West Main Associates v. Bellevue , 49 Wn. App. 513, 742 P.2d 1266 (1987), the court indicated that ex parte communicationswere not prohibited until an actual appeal has been filed with the city council relating to aquasi-judicial matter.

May decision-makers discuss a quasi-judicial matter outside of council chambers ?

If a situation occurs in which communication with a decision-maker occurs outside of the localgovernments hearing process, the decision-maker should place the substance of the written or oralcommunication on the record, make a public announcement of the content of the communication,and allow persons to rebut the substance of the communication. Failure to follow these steps couldresult in an overturning of the decision, should it ever be challenged in court.



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Is there an appearance of fairness problem if a planning commission member owns property within an area proposed for rezone ?

It would violate the appearance of fairness doctrine if a planning commission member who ownsproperty in the area to be rezoned participates in the hearing and/or votes. In the leading case on thisissue, Buell v. Bremerton , 80 Wn.2d 518, 495 P.2d 1358 (1972), a planning commissioner ownedproperty adjacent to an area to be rezoned. The court determined that the commissioner'sself-interest was sufficient to invalidate the entire proceeding.

May a planning commission member who has disqualified himself on a rezone action , discuss the application with other planning commission members?

A planning commission member who has disqualified himself on a specific action should not attemptto discuss the application with other planning commission members either inside or outside of thehearing process. See Hayden v. Port Townsend , 28 Wn. App. 192, 622 P.2d 1291 (1981).

If a councilmember has disqualified herself from participation in a councilhearing because she is an applicant in a land use matter, may she argue her own application in writing before the council ?

Our courts have ruled that once a member relinquishes his or her position for purposes of thedoctrine, he or she should not participate in the hearing. A disqualified decision-maker should not

join the hearing audience, act on behalf of an applicant, or interact in any manner with the othermembers. See Hayden v. Port Townsend , 28 Wn. App. 192, 622 P.2d 1291 (1981).

May a relative of a decision-maker , who is also a developer, act as an agent forthat decision-maker in presenting the proposal to council?

Yes, a relative would be allowed to act as the agent in these circumstances.

May the spouse of a disqualified decision-maker testify at the quasi-judicialhearing?

If the decision-maker disqualifies him or herself on a quasi-judicial issue coming before the council,his/her spouse may testify as long as the councilmember leaves the room and does not attempt tovote or participate in the deliberations.

May a decision-maker vote on a legislative issue if her husband is a planner for the local government and the issue could indirectly affect his work?

Yes. If the vote is on a legislative matter, then the appearance of fairness doctrine does not apply.



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May a city staff person present a development proposal to the planningcommission and city council on behalf of a developer who is also a citycouncilmember?

The staff member can present a report and recommendation to the council or planning commissionon behalf of the city. It is not appropriate for city staff to present both the city and the developer'sposition.

In a situation in which the chairman of the planning commission is a realtor and represents a client wishing to purchase property in an area of the city that isbeing considered for a rezone, may the chairman participate in the hearing andvote on the rezone application?

The fact that the chairman is a realtor does not in itself disqualify him from participation in rezonehearings. However, his representation of a client wanting to purchase property in the area beingconsidered for a rezone constitutes sufficient reason for disqualification from participation.

Will a violation of the appearance of fairness doctrine invalidate a decision,even if the vote of the offender was not necessary to the decision ?

Yes. Our courts have held that it is immaterial whether the vote of the offender was or was notnecessary to the decision.

Are contacts between a decision-maker and city staff members considered tobe ex parte contacts prohibited by the appearance of fairness doctrine?

The role of a local government department is to create a neutral report on a proposal and issue arecommendation to grant or deny a proposal that is subject to further appeal or approval. Contactswith staff would only be prohibited if the department involved is a party to quasi-judicial actionbefore the council or board.

May a councilmember participate in a vote on leasing city property to an acquaintance ?

Because the lease of city property is not a quasi-judicial matter and does not involve a public hearing,the appearance of fairness doctrine does not apply. (Note: There could be a potential conflict of interest question if the councilmember is likely to reap financial gain from the lease arrangements.)



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May a councilmember who is running for mayor state opinions during thecampaign regarding quasi-judicial matters that are pending before the counciland that will be decided before the election?

RCW 42.36.040 provides that expression of an opinion by a person subsequently elected to a publicoffice, on any pending or proposed quasi-judicial actions is not a violation of the appearance of fairness doctrine. However, this statute has never been interpreted by any appellate court, and it is

unclear how it applies to an incumbent councilmember who might speak during his or her campaign(for mayor in this case) concerning a quasi-judicial matter that will be decided by the current councilbefore the upcoming election. It would be best for the councilmember running for mayor not tospeak on the pending matter. To do so could compromise the fairness of the hearing on the matter.RCW 42.36.110 operates to protect the right to a fair hearing despite compliance with otherrequirements of chapter 42.36 RCW. Although RCW 42.36.040 clearly allows non -incumbentsrunning for office to speak on such a matter, the rights of the parties to a fair hearing might outweighthe right of an incumbent to speak out.

A councilmember who is also chair of the local housing authority would like to

participate in a hearing at which the council is asked to review a proposedlow-income housing project. If she can't participate as a councilmember, can shemake her views known as a private citizen?

Because the council will be meeting as a quasi-judicial body, the appearance of fairness doctrine isimplicated. Consequently, the councilmember should not only refrain from participation and votingon the issue but should also physically leave the room when the remaining councilmembers discussthe matter. This removes any potential claim that the councilmember has attempted to exert undueinfluence over the other councilmembers.

If a councilmember is disqualified from participation on appearance of fairnessgrounds and discusses the issue with another councilmember , may the secondcouncilmember still participate and vote?

If the first councilmember is disqualified, then any discussion between the disqualified member andthe other councilmember could be construed as an ex parte communication. If the content of theconversation is placed on the record according to the requirements of RCW 42.36.060, the othermember could probably participate.

May a councilmember attend a planning commission hearing on aquasi-judicial matter?

Although RCW 42.36.070 provides that participation by a member of a decision-making body in anearlier proceeding that results in an advisory recommendation to a decision-making body does notdisqualify that person from participating in any subsequent quasi-judicial proceeding, suchparticipation could potentially affect the applicant's right to a fair hearing. RCW 42.36.110 provides:



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Nothing in this chapter prohibits challenges to local land use decisions where actual violationof an individuals' right to a fair hearing can be demonstrated.

Out of perhaps an excess of caution, this office generally recommends that city councilmembers notattend planning commission hearings on quasi-judicial matters because it is possible that theirattendance might give rise to a challenge based on the appearance of fairness doctrine. We are notaware of any court decisions in which such a challenge has been adjudicated.

Can a candidate for municipal office accept campaign contributions fromsomeone who has a matter pending before the council?

Yes. Candidates may receive campaign contributions without violating the doctrine.RCW 42.36.050; Improvement Alliance v. Snohomish Co. , 61 Wn.App. 64, 808 P.2d 781 (1991).However, contributions must be reported as required by public disclosure law. Chapter 42.17 RCW.

Aren't elected officials supposed to be able to interact with their constituents ?

Absolutely. Accountability is a fundamental value in our representative democracy and requirespublic officials to be available to interact with their constituents. The statute addresses this bylimiting the doctrine to quasi-judicial actions and excluding legislative actions.

Can a quorum be lost through disqualification of members under theappearance of fairness doctrine?

No. If a challenge to a member, or members of a decision-making body would prevent a vote fromoccurring, then the challenged member or members may participate and vote in the proceedingsprovided that they first disclose the basis for what would have been their disqualification. This isknown as the doctrine of necessity and is codified in RCW 42.36.090.

What should a decision-maker do if an appearance of fairness challenge is raised ?

The challenged decision-maker should either refrain from participation or explain why the basis forthe challenge does not require him or her to refrain.

Are there any limitations on raising an appearance of fairness challenge?

Yes. Any claim of a violation must be made as soon as the basis for disqualification is made knownto the individual. If the violation is not raised when it becomes known, or when it reasonablyshould have been known, the doctrine cannot be used to invalidate the decision. RCW 42.36.080.



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If a violation is proved, what is the remedy ?

The remedy for an appearance of fairness violation is to invalidate the local land use regulatoryaction. The result is that the matter will need to be reheard. Damages, however, cannot be imposedfor a violation of the doctrine. See Alger v. City of Mukilteo , 107 Wn. 2d 541, 730 P.2d 1333 (1987).

Does the appearance of fairness doctrine prohibit a decision-maker fromreviewing and considering written correspondence regarding matters to bedecided in a quasi-judicial proceeding?

No. Decision-makers can accept written correspondence from anyone provided the correspondenceis disclosed and made part of the record of the quasi-judicial proceeding. RCW 42.36.060.

What local government department oversees application of the appearance of fairness doctrine?

No person or body has the authority to oversee application of the appearance of fairness doctrine tomembers of a decision-making body. It is up to the individual members to determine whether thedoctrine applies to them in a particular situation and to disqualify themselves if it does. Some localgoverning bodies have established rules that allow the votes of the membership to disqualify amember in the event of an appearance of fairness challenge. A governing body probably has theauthority to establish such a rule based upon its statutory authority to establish rules of conduct.



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Appendix A

Chapter 42.36 RCW

Laws/Statutes Designed to Promote Fairness and Openness inGovernment

Chapter 42.17 RCW PUBLIC DISCLOSURE ACT

Chapter 42.30 RCW OPEN PUBLIC MEETINGS ACT

Chapter 42.36 RCW APPEARANCE OF FAIRNESS DOCTRINE - LIMITATIONS (Full Text Follows)


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Chapter 42.36 RCWAPPEARANCE OF FAIRNESS DOCTRINE LIMITATIONS

RCW 42.36.010Local land use decisions.

Application of the appearance of fairness doctrine to local land use decisions shall be limited to thequasi-judicial actions of local decision-making bodies as defined in this section. Quasi-judicialactions of local decision-making bodies are those actions of the legislative body, planningcommission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine thelegal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding.Quasi-judicial actions do not include the legislative actions adopting, amending, or revisingcomprehensive, community, or neighborhood plans or other land use planning documents or theadoption of area-wide zoning ordinances or the adoption of a zoning amendment that is of area-widesignificance.

RCW 42.36.020Members of local decision-making bodies.

No member of a local decision-making body may be disqualified by the appearance of fairnessdoctrine for conducting the business of his or her office with any constituent on any matter other thana quasi-judicial action then pending before the local legislative body.

RCW 42.36.030Legislative action of local executive or legislative officials.

No legislative action taken by a local legislative body, its members, or local executive officials shall

be invalidated by an application of the appearance of fairness doctrine.

RCW 42.36.040Public discussion by candidate for public office.

Prior to declaring as a candidate for public office or while campaigning for public office as definedby RCW 42.17.020(5) and (25) no public discussion or expression of an opinion by a personsubsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall bea violation of the appearance of fairness doctrine.

RCW 42.36.050Campaign contributions.

A candidate for public office who complies with all provisions of applicable public disclosure andethics laws shall not be limited from accepting campaign contributions to finance the campaign,including outstanding debts; nor shall it be a violation of the appearance of fairness doctrine toaccept such campaign contributions.



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RCW 42.36.060Quasi-judicial proceedings Ex parte communications prohibited, exceptions.

During the pendency of any quasi-judicial proceeding, no member of a decision-making body mayengage in ex parte communications with opponents or proponents with respect to the proposal whichis the subject of the proceeding unless that person:

(1) Places on the record the substance of any written or oral ex parte communicationsconcerning the decision of action; and

(2) Provides that a public announcement of the content of the communication and of theparties' rights to rebut the substance of the communication shall be made at each hearingwhere action is considered or taken on the subject to which the communication related. Thisprohibition does not preclude a member of a decision-making body from seeking in a publichearing specific information or data from such parties relative to the decision if both therequest and the results are a part of the record. Nor does such prohibition precludecorrespondence between a citizen and his or her elected official if any such correspondenceis made a part of the record when it pertains to the subject matter of a quasi-judicialproceeding.

RCW 42.36.070Quasi-judicial proceedings - Prior advisory proceedings.

Participation by a member of a decision-making body in earlier proceedings that result in an advisoryrecommendation to a decision-making body shall not disqualify that person from participating in anysubsequent quasi-judicial proceeding.

RCW 42.36.080Disqualification based on doctrine - Time limitation for raising challenge.

Anyone seeking to rely on the appearance of fairness doctrine to disqualify a member of adecision-making body from participating in a decision must raise the challenge as soon as the basisfor disqualification is made known to the individual. Where the basis is known or should reasonablyhave been known prior to the issuance of a decision and is not raised, it may not be relied on toinvalidate the decision.

RCW 42.36.090

Participation of challenged member of decision-making body.

In the event of a challenge to a member or members of a decision-making body which would causea lack of a quorum or would result in a failure to obtain a majority vote as required by law, any suchchallenged member(s) shall be permitted to fully participate in the proceeding and vote as thoughthe challenge had not occurred, if the member or members publicly disclose the basis fordisqualification prior to rendering a decision. Such participation shall not subject the decision to achallenge by reason of violation of the appearance of fairness doctrine.



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RCW 42.36.100Judicial restriction of doctrine not prohibited - Construction of chapter.

Nothing in this chapter prohibits the restriction or elimination of the appearance of fairness doctrineby the appellate courts. Nothing in this chapter may be construed to expand the appearance of fairness doctrine.

RCW 42.36.110Right to fair hearing not impaired.

Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated.



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Appendix B

Summary of Washington Appearanceof Fairness Doctrine Cases


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Summary of Washington Appearanceof Fairness Doctrine Cases

Case Body/Action Conflict Decision

Smith v. Skagit County , 75Wn.2d 715, 453P.2d 832 (1969)

Planning Commission/ Rezone

Planning commission met withproponents and excluded opponentsin executive session.

Violation of appearance of fairnessdoctrine. Amendments to zoningordinance to create an industrialzone were void - cause remanded tothe superior court for entry of such adecree.

State ex. rel. Beam v.Fulwiler , 76Wn.2d 313, 456P.2d 322 (1969)

Civil ServiceCommission/Appeal fromdischarge of civil serviceemployee (chief examinerof commission)

Challenge to hearing tribunalcomposed of individuals whoinvestigated, accused, prosecuted,and would judge the controversyinvolved.

An appellate proceeding before thecommission would make the samepersons both prosecutor and judgeand the tribunal must, therefore, bedisqualified. A fair and impartialhearing before an unbiased tribunalis elemental to the concepts of fundamental fairness inherent inadministrative due process.

Chrobuck v.SnohomishCounty , 78Wn.2d 858, 480P.2d 489 (1971)

Planning Commission -Board of CountyCommissioners/ Comprehensive planamendment and rezone

Chairman of planning commissionand chairman of countycommissioners visited Los Angeleswith expenses paid by petitioner.Chairman of county commissionersannounced favorable inclinationprior to hearing. New planningcommission member previouslytestified on behalf of petitioner andsigned advertisement to that effect,then participated to some extent atcommission hearings butdisqualified himself from voting.

Violation of appearance of fairnessdoctrine. Rezone set aside - landreturned to original designation.Planning commission functions asan administrative or quasi-judicialbody. Note: Cross-examinationmay be required if both parties haveattorneys.

Buell v.

Bremerton , 80Wn.2d 518, 495P.2d 1358(1972)

Planning Commission/

Rezone

Chairman of planning commission

owned property adjoining propertyto be rezoned. Property could havebeen indirectly affected in value.

Violation of appearance of fairness

doctrine. Overrules Chestnut HillCo. v. Snohomish County . Actionby city council rezoning property onplanning commissionrecommendation improper.

Fleming v.Tacoma , 81Wn.2d 292, 502P.2d 327 (1972)

City Council/Rezone Attorney on council employed bythe successful proponents of azoning action two days afterdecision by city council.

Violation of appearance of fairnessdoctrine. Rezone ordinance invalid.Overrules Lillians v. Gibbs .

Anderson v. Island County ,81 Wn.2d 312,501 P.2d 594

(1972)

Board of CountyCommissioners/Rezone

Chairman of county commissionwas former owner of applicant'scompany. Chairman told opponentsat public hearing they were wasting

their time talking.

Violation of appearance of fairnessdoctrine. Reversed and remandedfor further proceedings.

NarrowsviewPreservation

Association v.Tacoma , 84Wn.2d 416, 526P.2d 897 (1974)


Member of planning commissionwas a loan officer of bank whichheld mortgage on property of applicant. Member had noknowledge his employer held themortgage on the property.

Appearance of fairness doctrineviolation; thus zoning ordinanceinvalid. Court also held, however,acquaintances with persons orcasual business dealings insufficientto constitute violation of doctrine.



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Byers v. The Board of Clallam CountyCommissioners ,84 Wn.2d 796,529 P.2d 823(1974)

Planning Commission/ Adoption of interimzoning ordinance

Members owned property 10-15miles from area zoned and there wasno indication that such property wasbenefited directly or indirectly byrezone.

No violation of appearance of fairness doctrine. Ordinance heldinvalid on other grounds.

Seattle v. Loutsis Investment Co., Inc. , 16 Wn.App. 158, 554P.2d 379 (1976)

City/Certiorari to reviewfindings of public use andnecessity by court incondemnation action

Alleged illegal copy made of a keyto the condemned premises andunauthorized entries by cityemployees and other arbitraryconduct by city employees violatedappearance of fairness doctrine.

Court held appearance of fairnessdoctrine applies only to hearingsand not to administrative actions bymunicipal employees. CitesFleming v. Tacoma .

King CountyWater District

No. 54 v. KingCounty

Boundary Review Board ,87 Wn.2d 536,554 P.2d 1060(1976)

Boundary ReviewBoard/Assumption by cityof water district

Alleged ex parte conversationsbetween member of the board andpersons associated with SeattleWater District and Water DistrictNo. 75 about the proposedassumption by city of Water DistrictNo. 54.

No appearance of fairness violation.Record does not indicateconversations took place and courtcould not conclude there was anypartiality or entangling influenceswhich would affect the boardmember in making the decision.

Swift, et al. v. Island County,et al. , 87 Wn.2d348, 552 P.2d175 (1976)

Board of CountyCommissioners/ Overruling planningcommission andapproving a preliminaryplat

A county commissioner was astockholder and chairman of theboard of a savings and loanassociation that had a financialinterest in a portion of the propertybeing platted.

Violated appearance of fairnessdoctrine.

Milwaukee R.R.v. Human

RightsCommission , 87Wn.2d 802, 557P.2d 307 (1976)

State Human RightsCommission SpecialHearing Tribunal/ Complaint againstrailroad for allegeddiscrimination

Member of hearing tribunal hadapplied for a job with thecommission.

The board's determination heldinvalid because it had appearance of unfairness.

Fleck v. KingCounty , 16 Wn.App. 668, 558P.2d 254 (1977)

Administrative AppealsBoard/permit to installfuel tank

Two members of the board werehusband and wife.

Fact that two members of boardwere husband and wife createdappearance of fairness problem.

SAVE (Save aValuable

Environment) v. Bothell , 89Wn.2d 862, 576P.2d 401 (1978)

Bothell PlanningCommission/Rezone

Planning commission memberswere executive director and amember of the board of directors,respectively, of the chamber of commerce which actively promotedthe rezone.

Violation of appearance of fairness.Trial court found that the proposedshopping center, which would beaccommodated by the rezone,would financially benefit most of the chamber of commerce membersand their support was crucial to thesuccess of the application. The

planning commission members'associational ties were sufficient torequire application of the doctrine.



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Polygon v.Seattle , 90Wn.2d 59, 578P.2d 1309(1978)

City of Seattle,Superintendent of Buildings/Application forbuilding permit denied

Announced opposition to theproject by the mayor, and astatement allegedly made by thesuperintendent, prior to the denial,that because of the mayor'sopposition, he would announce thatthe permit application would bedenied.

The appearance of fairness doctrinedoes not apply to administrativeaction, except where a publichearing is required by law. Theapplicable fairness standard fordiscretionary administrative actionis actual partiality precluding fairconsideration.

Hill v. Dept. L& I , 90 Wn.2d276, 580 P.2d636 (1978)

Board of IndustrialInsurance Appeals/Appealby industrial insuranceclaimant

The chairman of the appeals boardhad been supervisor of industrialinsurance at the time the claim hadbeen closed.

No violation of appearance of fairness doctrine. The chairmansubmitted his uncontrovertedaffidavit establishing lack of previous participation or knowledgeof the case.

City of Bellevuev. King County

Boundary Review Board ,90 Wn.2d 856,586 P.2d 470(1978)

Boundary ReviewBoard/Approval of annexation proposal

Use of interrogatories on appeal tosuperior court to prove bias of board members.

Holding that the use of such extra-record evidence was permissibleunder the specific circumstancespresent, the majority opinionobserved: "Our appearance of fairness doctrine, though relating toconcerns dealing with due processconsiderations, is notconstitutionally based ...."

EvergreenSchool District v. School

District Organization ,27 Wn. App.826, 621 P.2d770 (1980)

County Committee onSchool DistrictOrganization/Adjustmentof school districtboundaries

Member of school district boardthat opposed transfer of property tothe proponent school districtparticipated as a member of thecounty committee on school districtorganization.

Decision to adjust school districtboundaries is a discretionary, quasi-legislative determination to whichthe appearance of fairness doctrinedoes not apply.

Hayden v. Port Townsend , 28Wn. App. 192,622 P.2d 1291(1981)


Planning commission chairman,who was also branch manager of S & L that had an option topurchase the site in question,stepped down as chairman butparticipated in the hearing as anadvocate of the rezone.

Participation of planningcommission chairman as advocateof rezone violated appearance of fairness doctrine.

Somer v.Woodhouse , 28Wn. App. 262,623 P.2d 1164(1981)

Department of Licensing/ Adoption of administrative rule

During two rules hearings, theDirector of the Department of Licensing sat at the head table withthe representatives of anorganization that was a party to thecontroversy, some of whom arguedfor adoption of the rule proposed bythe department. The minutes of therules hearings also bore the name of

the same organization.

The appearance of fairness doctrineis generally not applicable to aquasi-legislative administrativeaction involving rule-making.



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Westside HilltopSurvivalCommittee v.King County , 96Wn.2d 171, 634P.2d 862 (1981)

County Council/ Comprehensive planamendment

Prior to modification of thecomprehensive plan, there were exparte contacts between one or twocouncilmembers and officials of theproponent corporation, and twocouncilmembers had acceptedcampaign contributions in excess of $700 from employees of theproponent corporation. Thesecouncilmembers activelyparticipated in, and voted for,adoption of the ordinancemodifying the comprehensive planto allow construction of an officebuilding on a site previouslydesignated as park and open space.

Comprehensive plans are advisoryonly, and a local legislative body'saction to determine the contents of such a plan is legislative rather thanadjudicatory. Legislative action inland use matters is reviewed underthe arbitrary and capricious standardand is not subject to the appearanceof fairness doctrine.

Hoquiam v.PERC , 97Wn.2d 481, 646P.2d 129 (1982)

Public EmploymentRelations Commission(PERC)/Unfair laborpractice complaint

Member of PERC was partner inlaw firm representing union.

Law firm's representation of theunion did not violate the appearanceof fairness doctrine wherecommissioner, who was a partner inthe law firm representing the union,disqualified herself from allparticipation in the proceedings.

Dorsten v. Port of Skagit County , 32 Wn.App. 785, 650P.2d 220 (1982)

Port Commission/Increaseof moorage charges atpublic marina

Alleged prejudgment bias of commissioner who was an owner orpart owner of a private marina incompetition with the port's marina.

The port's decision was legislativerather than judicial and theappearance of fairness doctrine didnot apply.

Harris v. Hornbaker , 98Wn.2d 650, 658P.2d 1219(1983)

Board of CountyCommissioners/Board'sdetermination of afreeway interchange -adoption of six-year roadplan

Alleged prejudgment bias of certaincounty commissioners.

Deciding where to locate a freewayinterchange is a legislative ratherthan an adjudicatory decision, theappearance of fairness doctrine doesnot apply.

Medical Disciplinary Board v. Johnston , 99Wn.2d 466, 663P.2d 457 (1983)

Medical DisciplinaryBoard/Revocation of medical license

Challenge to the same tribunalcombining investigative andadjudicative functions, and thepractice of assigning a singleassistant attorney general as boththe board's legal advisor andprosecutor.

The appearance of fairness doctrineis not necessarily violated in suchcases. The facts and circumstancesin each case must be evaluated todetermine whether a reasonablyprudent disinterested observerwould view the proceeding as a fair,impartial, and neutral hearing and,unless shown otherwise, it must bepresumed that the board membersperformed their duties properly andlegally. (In a concurring opinion,Justices Utter, Dolliver, andDimmick asserted that the majority's

analysis of the appearance of fairness doctrine merely reiteratesthe requirements of due process andthereby causes unnecessaryconfusion.) (In a dissentingopinion, Justices Rosellini and Doreargued that the combination of investigative, prosecutorial, andadjudicative functions within thesame tribunal constitutes anappearance of fairness violation.)



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Side v. Cheney ,37 Wn. App.199, 679 P.2d403 (1984)

Mayor/Promotion of police officer to sergeant

Mayor passed over first-listedofficer on civil service promotionlist who had also filed for electionfor position of mayor.

Appearance of fairness doctrinedoes not apply to mayor who didnot act in role comparable to

judicial officer. Mayor's promotiondecision was not a quasi-judicialdecision.

Zehring v.

Bellevue , 103Wn.2d 588, 694P.2d 638 (1985)

Planning Commission/

Design review

Member of commission committed

himself to purchase stock inproponent corporation beforehearing held in which commissiondenied reconsideration of itsapproval of building design.

Appearance of fairness doctrine

does not apply to design review.Doctrine only applies where apublic hearing is required and nopublic hearing is required for designreview. Court vacates its decisionin earlier case ( Zehring v. Bellevue ,99 Wn.2d 488 (1983), where it helddoctrine had been violated.)

West Main Associates v. Bellevue , 49Wn. App. 513,742 P.2d 1266(1987)

City Council/Denial of application for designapproval

Councilmember attended meetingheld by project opponents and hadconversation with people atmeeting, prior to planning director'sdecision and opponent's appeal of that decision to council.

Appearance of fairness doctrineprohibits ex parte communicationsbetween public, quasi-judicialdecision-makers only wherecommunication occurs while quasi-

judicial proceeding is pending.Since communication at issueoccurred one month prior to appealof planning director's decision to thecouncil, it did not occur during thependency of the quasi-judicialproceeding and doctrine was thusnot violated.

SnohomishCounty

Improvement Alliance v.SnohomishCounty , 61 Wn.

App. 64, 808P.2d 781 (1991)

County Council/Denial of application for rezoneapproval

Two councilmembers receivedcampaign contributions duringpendency of appeal.

Contributions were fully disclosed.The contributions were not ex partecommunications as there was noexchange of ideas. RCW 42.36.050provides that doctrine is notviolated by acceptance of

contribution.

Raynes v. Leavenworth ,118 Wn.2d 237,821 P.2d 1204(1992)

City Council/Amendmentof zoning code

Councilmember was real estateagent for broker involved in sale of property to person who was seekingamendment of zoning code.Councilmember participated incouncil's consideration of proposedamendment.

Text amendment was of area-widesignificance. Council action thuswas legislative, rather than quasi-

judicial. Appearance of fairnessdoctrine does not apply tolegislative action. Limits holding of Fleming v. Tacoma , 81 Wn.2d 292,502 P.2d 327 (1972) throughapplication of statutory appearanceof fairness doctrine (RCW42.36.010), which restricts types of decisions classed as quasi-judicial.

Trepanier v. Everett , 64 Wn.App. 380, 824P.2d 524 (1992)

City Council/ Determination thatenvironmental impactstatement not required forproposed zoningordinance

City both proposed new zoningcode and acted as lead agency forSEPA purposes in issuingdetermination of nonsignificance(DNS).

Person who drafted new code wasdifferent from person who carriedout SEPA review. In addition, therewas no showing of bias, orcircumstances from which biascould be presumed, in council'sconsideration of legislationproposed by executive.



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State v. Post ,118 Wn.2d 596,837 P.2d 599(1992)

Community CorrectionsOfficer/Preparation of presentence report

Presentence (probation) officer is anagent of the judiciary; that officer'salleged bias is imparted to judge.

Probation officer is not thedecisionmaker at sentencinghearing; judge is. Appearance of fairness does not apply to probationofficer. In addition, no actual orpotential bias shown.

Jones v. King

Co. , 74 Wn.App. 467,__P.2d__(1994)

County Council/Area-

wide rezone

Action has a high impact on a few

people; therefore, it should besubject to appearance of fairnessdoctrine.

Area-wide rezoning constitutes

legislative, rather than quasi-judicialaction under RCW 42.36.010regardless of whether decision has ahigh impact on a few people orwhether local government permitslandowners to discuss their specificproperties.

Lake Forest Park v. State ,76 Wn. App.212, __P.2d__(1994)

Shorelines HearingsBoard/Shorelinesubstantial developmentpermit

Reconsideration of the recordallegedly prejudiced the SHBagainst the city.

When acting in a quasi-judicialcapacity, judicial officers must befree of any hint of bias. However, aparty claiming an appearance of fairness violation cannot indulge inmere speculation, but must presentspecific evidence of personal orpecuniary interest.

Bjarnson v.Kitsap Co. , 78Wn. App. 840(1995)

County Commissioner/ Rezone and planned unitdevelopment

Member of decision-making bodyhad ex parte communicationsduring pendency of rezone.

Improper conduct of member wascured if remaining members of board conduct a rehearing and thereis no question of bias or theappearance of bias of remainingmembers.

Opal v. AdamsCo. , 128 Wn.2d869 (1996)

County Commissioner/ Adequacy of environmental impactstatement for unclassifieduse permit for regionallandfill

Member of decision-making bodyhad numerous ex parte contact withproponents of project duringpendency of application.

While ex parte contacts areimproper unless disclosed, anyviolation of the Appearance of Fairness Doctrine was harmlesssince the purpose of disclosure is toallow opponents to rebut, and thiswas fully addressed by opponents inthe public hearings.

Notes:Adapted from a chart originally prepared by Lee Kraft, former City Attorney of Bellevue.Court decisions may have rested on grounds other than appearance of fairness doctrine alone.



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Appendix CSample Council Meeting Procedures

for Quasi-Judicial Meetings


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Snohomish County Website

Appearance of Fairness Doctrine Why cant County Council members talk to constituents about local land use issues (except in aformal public hearing)?

The appearance of fairness doctrine restricts county council members from discussing the merits of certain types of land use matters that will or could be heard by the council on appeal from the countyHearing Examiner.

In hearing such land use appeals, the county council acts in a quasi-judicial capacity, that is like acourt, and the council is therefore required to follow certain Constitutional due-process rules.Specifically, the courts have ruled that discussions about a pending case should occur only at aformal public hearing where all interested parties have an equal opportunity to participate.

Citizens, however, are welcome to discuss any issue with the county councils staff. Please call425-388-3494.



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City of Poulsbo Council Rules of Procedure

5.3 VOTES ON MOTIONS: Each member present shall vote on all questions put to the Councilexcept on matters in which he or she has been disqualified for a conflict of interest or underthe appearance of fairness doctrine. Such member shall disqualify himself or herself prior toany discussion of the matter and shall leave the Council Chambers. When disqualification of a member or members results or would result in the inability of the Council at a subsequent

meeting to act on a matter on which it is required by law to take action, any member who wasabsent or who had been disqualified under the appearance of fairness doctrine maysubsequently participate, provided such member first shall have reviewed all materials andlistened to all tapes of the proceedings in which the member did not participate.

6.2 CONFLICT OF INTEREST/APPEARANCE OF FAIRNESSPrior to the start of a public hearing the Chair will ask if any Councilmember has a conflict of interest or Appearance of Fairness Doctrine concern which could prohibit the Councilmemberfrom participating in the public hearing process. A Councilmember who refuses to step downafter challenge and the advice of the City Attorney, a ruling by the Mayor or Chair and/or arequest by the majority of the remaining members of the Council to step down is subject to

censure. The Councilmember who has stepped down shall not participate in the Councildecision nor vote on the matter. The Councilmember shall leave the Council Chambers whilethe matter is under consideration, provided, however, that nothing herein shall be interpretedto prohibit a Councilmember from stepping down in order to participate in a hearing in whichthe Councilmember has a direct financial or other personal interest.

7.7 COMMENTS IN VIOLATION OF THE APPEARANCE OF FAIRNESS DOCTRINE:The Chair may rule out of order any comment made with respect to a quasi-judicial matterpending before the Council or its Boards or Commissions. Such comments should be madeonly at the hearing on a specific matter. If a hearing has been set, persons whose comments areruled out of order will be notified of the time and place when they can appear at the publichearing on the matter and present their comments.

10.4 DISCLOSURE, AVOIDING THE APPEARANCE OF IMPROPRIETY: While statestatutory provisions regarding the Appearance of Fairness Doctrine govern our conduct inquasi judicial matters, Councilmembers will also attempt to avoid even the appearance of impropriety in all of our actions. When we are aware of an issue that might reasonably beperceived as a conflict, and even if we are in doubt as to its relevance, we will reveal that issuefor the record. We pledge that we will step down when required by the Appearance of FairnessDoctrine, that is, when an objective person at a Council meeting would have reasonable causeto believe that we could not fairly participate.



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City of Des Moines Council Rules of Procedure

APPEARANCE OF FAIRNESS DOCTRINE

RULE 15. Appearance of Fairness Doctrine and its Application.

(a) Appearance of Fairness Doctrine Defined. "When the law which calls for public hearings

gives the public not only the right to attend but the right to be heard as well, the hearings must notonly be fair but must appear to be so. It is a situation where appearances are quite as important assubstance. The test of whether the appearance of fairness doctrine has been violated is as follows:Would a disinterested person, having been apprised of the totality of a boardmember's personalinterest in a matter being acted upon, be reasonably justified in thinking that partiality may exist?If answered in the affirmative, such deliberations, and any course of conduct reached thereon, shouldbe voided." Zehring v. Bellevue, 99 Wn.2d 488 (1983).

(b) Types of Hearings to Which Doctrine Applies. The appearance of Fairness Doctrine shallapply only to those actions of the Council which are quasi-judicial in nature. Quasi-judicial actionsare defined as actions of the City Council which determine the legal rights, duties, or privileges of

specific parties in a hearing or other contested proceeding. Quasi-judicial actions do not include thelegislative actions adopting, amending, or revising comprehensive, community, or neighborhoodplans or other land use planning documents of the adoption of areawide zoning ordinances or theadoption of a zoning amendment that is of area-wide significance.

RCW 42.36.010. Some examples of quasi-judicial actions which may come before the Councilare: rezones or reclassifications of specific parcels of property, appeals from decisions of theHearing Examiner, substantive appeals of threshold decisions under the State EnvironmentalProtection Act, subdivisions, street vacations, and special land use permits.

(c) Obligations of Councilmembers, Procedure.

(1) Councilmembers should recognize that the Appearance of Fairness Doctrine does notrequire establishment of a conflict of interest, but whether there is an appearance of conflict of interest to the average person. This may involve the Councilmember or a Councilmember's businessassociate or a member of the Councilmember's immediate family. It could involve ex partecommunications, ownership of property in the vicinity, business dealings with the proponents oropponents before or after the hearing, business dealings of the Councilmember's employer with theproponents or opponents, announced predisposition, and the like.

Prior to any quasi-judicial hearing, each Councilmember should give consideration to whether apotential violation of the Appearance of Fairness Doctrine exists. If the answer is in the affirmative,no matter how remote, the Councilmember should disclose such facts to the City Manager who willseek the opinion of the City Attorney as to whether a potential violation of the Appearance of Fairness Doctrine exists. The City Manager shall communicate such opinion to the Councilmemberand to the Presiding Officer.

(2) Anyone seeking to disqualify a Councilmember from participating in a decision onthe basis of a violation of the Appearance of Fairness Doctrine must raise the challenge as soon asthe basis for disqualification is made known or reasonably should have been made known prior to



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the issuance of the decision; upon failure to do so, the Doctrine may not be relied upon to invalidatethe decision. The party seeking to disqualify the Councilmember shall state with specificity the basisfor disqualification; for example: demonstrated bias or prejudice for or against a party to theproceedings, a monetary interest in outcome of the proceedings, prejudgment of the issue prior tohearing the facts on the record, or ex parte contact. Should such challenge be made prior to thehearing, the City Manager shall direct the City Attorney to interview the Councilmember and renderan opinion as to the likelihood that an Appearance of Fairness violation would be sustained insuperior court. Should such challenge be made in the course of a quasi-judicial hearing, the PresidingOfficer shall call a recess to permit the City Attorney to make such interview and render suchopinion.

(3) The presiding Officer shall have sole authority to request a Councilmember to excusehimself/herself on the basis of an Appearance of Fairness violation. Further, if two (2) or moreCouncilmembers believe that an Appearance of Fairness violation exists, such individuals may moveto request a Councilmember to excuse himself/herself on the basis of an Appearance of Fairnessviolation. In arriving at this decision, the Presiding Officer or other Councilmembers shall give dueregard to the opinion of the City Attorney.

(4) Notwithstanding the request

Documents

69 _Renton Police Department Public Records